# Kevin Brown v. Jim Robertson

> Court of Appeals for the Ninth Circuit · April 16, 2024

URL: https://www.frixlaw.com/law-library/cases/9960595

## Case

- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** April 16, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

FILED
NOT FOR PUBLICATION
APR 16 2024
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEVIN A. BROWN, No. 21-16712

Petitioner-Appellant, D.C. No.
2:20-cv-00991-KJM-DB
v.

JIM ROBERTSON, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, Chief District Judge, Presiding

Submitted April 8, 2024**
San Francisco, California

Before: PAEZ and SUNG, Circuit Judges, and FITZWATER,*** District Judge.

Petitioner-Appellant Kevin A. Brown (“Brown”), proceeding pro se, appeals

the district court’s judgment denying his mixed petition for habeas corpus relief under

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Sidney A. Fitzwater, United States District Judge for the
Northern District of Texas, sitting by designation.
28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. § 1291 and under 28 U.S.C.

§§ 2253(a), (c)(1)(A) based on a certificate of appealability granted by a panel of this

court on the following issues: “whether the state trial court violated appellant’s

constitutional rights when it denied his pretrial request for self-representation under

Faretta v. California, 422 U.S. 806 (1975), including whether this claim has been

properly exhausted. See 28 U.S.C. § 2253(c)(3); see also 9th Cir. R. 22-1(e).”

We DISMISS the appeal because Brown concedes that he raised his pretrial

Faretta claim for the first time in federal district court. See 28 U.S.C.

§ 2254(b)(1)(A). Therefore, his Faretta claim is unexhausted unless an exception to

exhaustion applies or the failure to exhaust was excused. See 28 U.S.C.

§ 2254(b)(1)(B). We REMAND this matter to the district court for further

proceedings, including consideration of the exhaustion issues and whether to issue a

stay under Rhines v. Weber, 544 U.S. 269 (2005). See, e.g., Robbins v. Carey, 481

F.3d 1143, 1148 (9th Cir. 2007) (approving three-step stay-and-abeyance procedure

in the district court as a solution for mixed petitions).

DISMISSED and REMANDED.

-2-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9960595. Public record. Not legal advice.